Editorial Note

On 28 November 1772 Adams wrote in his diary, “The Conversation of the Town and Country
has been about the strange Occurrence of last Week, a Piracy said to have been committed
on a Vessell bound to Cape Cod, 3 Men killed, a Boy missing, and only one Man escaped
to tell the News—a misterious, inexplicable Affair!”1 The later trial of Ansell Nickerson, the “one Man escaped,” for the alleged murder,
with Adams and Josiah Quincy Jr. as defense counsel, was only to deepen the mystery.

Nickerson had sailed on 14 November from Boston for Chatham as passenger aboard a
small fishing schooner under the command of his cousin Thomas Nickerson. In the crew
were Sparrow Nickerson, brother to Thomas; their brother-in-law, Elisha Newcomb; and
William Kent, a boy of thirteen. About ten o'clock in the morning of Sunday the 15th,
Captain Joseph Doane Jr., of Chatham, having sailed from that harbor, sighted the
schooner between Chatham and Nantucket, flying a signal of distress. On boarding her,
Doane found only Nickerson, “who appeared to be in a great Fright,” but who was able
to report that about two o'clock that morning those aboard the fishing vessel had
seen “a Topsail Schooner, who brought them to, and sent a Boat on board, and after
questioning them returned again—Soon after four Boats with armed Men came back from
the Schooner.”2

Nickerson, “fearing he should be Impressed, got over the Stern and held with his hands
by the Taffarill,3 with his Feet on the Moulding, under the Cabin Windows. That whilst he was thus hanging
over the Stern he judges by what he heard that the Master, with his own Brother, and
a Brother-in-Law, named Newcomb, were murdered and thrown overboard, and a Boy named
Kent, carried away alive, as they said, in order to make Punch for them—That he heard a Talk of burning the Vessel, but it was finally agreed to leave her
to drive out to Sea with her Sails standing. That after perpetrating this inhuman
Deed they plundered the Vessel of a considerable Quantity of Cash,4 knocked out the head of a Barrel of Rum, and after wasting the greatest Part of it,
went off with the money and other Booty; tho' they left behind a Quarter of fresh
Beef & a number of small Stores.—That when they left the Vessel, he came upon Deck,
he found none of the Crew, but saw the Marks of blood, and supposes they were murdered.”5

Doane apparently brought the schooner into Chatham, and then sent his account of the
episode to Edward Bacon, a justice of the peace in Barnstable. Bacon forwarded Doane's
report to Governor Thomas Hutchinson in Boston, and went himself to Chatham on the
16th, where, with another justice, he formally examined Nickerson, who had returned
from some unexplained wanderings (Document II). Bacon then dismissed him with the consent of the father of the two deceased Nickersons.
In the meanwhile, the Lively man-of-war was sent out from Boston to search for the supposed pirate.6 On the 19th Bacon's examination reached Hutchinson, who, finding “Every part of the
passenger's [Nickerson's] account . . . incredible,”7 consulted with “such of the Commissioners for the trial of Piracies, &c. as were
in Town,”8 and issued a warrant for Nickerson's apprehension. This order reached Barnstable
by express at midnight on the 20th. There Nickerson was in jail, the local justices
having had second thoughts about his story. He had been taken into custody again,
re-examined, and committed, “in order to receive Directions from the Governor.” Finally,
on the 22d, Nickerson was brought under guard to the Province House at Boston, where
Hutchinson, Admiral John Montagu, Lieutenant Governor Andrew Oliver, and Secretary
Thomas Flucker, all Commissioners for the Trial of Piracy, examined him from seven
until eleven in the evening, and ordered him held for trial.9

The Lively returned after a fruitless search,10 and a Special Court of Admiralty for the Trial of Piracies was thereupon convened.
There were some, according to Hutchinson's later account, who “were ready enough to
charge the piracy and murder to a king's schooner, then expected from Rhode Island,”
and the Sons of Liberty “professed to make no doubt of its being a man of war schooner;
and the governor was charged in the publick prints with too critical and severe an
examination of the prisoner, whose innocence, it was said, would appear.” The old
cry that an Admiralty trial deprived the accused of his right to a jury was also raised,11 but the Commissioners were not deterred. On 16 December, at a sitting of the Special
Court, “an Information was filed and exhibited by Ezekiel Price appointed Register
of the said Court, against Ansell Nickerson, a Prisoner in his Majesty's Goal, for
the murder of Thomas Nickerson, jun., on the High { 338 } Seas on the 14th of November last.” Nickerson pleaded Not Guilty, and, upon motion
for time to prepare his defense, he was remanded to jail, and the court adjourned
until 2 June 1773.12

When the day set for trial arrived, the court did not convene, according to one account,
because “some matters of greater importance,” presumably the investigation of the
burning of the Gaspee, “employ at present the time of several members.”13 Nickerson was again examined, however, on the basis of new evidence which was said
to militate against him.14 Finally, in the middle of July trial was set for the 28th of that month.15

According to Adams' later recollection, “I was of counsel for Nickerson, but was not
engaged till the trial came on, when he requested the court to appoint me.” This arrangement
seems to have been made sometime after 28 July 1773,16 when the proceedings actually began. A contemporary account relates that witnesses
on both sides were examined from that day until the evening of Friday the 30th. The
court then adjourned until Tuesday, 3 August, when Samuel Fitch, Advocate General,
after examining several additional witnesses for the Crown, made his opening argument
(Document II).17 Fitch first argued that Nickerson was properly before the Special Court, though charged
with murder, since that offense, as well as taking the vessel, constituted piracy.
Then, after citing authorities on the nature of circumstantial and presumptive proof,
he launched into an extensive review of the evidence. The burden of his argument was
that the inherent improbabilities of Nickerson's account were a strong indication
of its untruth; that the facts would as well support the Crown's version of the affair;
and that the accused had had ample time to bring ashore unobserved the money, theft
of which was supposed to have been the motive of his acts.

On the afternoon of 3 August, Adams and Josiah Quincy Jr., began their { 339 } argument, which was to last through the next day.18 Quincy apparently opened, probably with a review of the evidence. All that has survived,
however, are Adams' fragmentary notes of authorities cited by Quincy, which indicate
that the latter concentrated heavily on the quantum of proof needed for conviction
where the evidence was wholly circumstantial except for the accused's own statements
(Document II). Adams first briefly discussed the information, then made an argument drawn from
his experience in Rex v. Corbet, No. 56, that since the court sat in Admiralty it should apply the civil-law doctrine that
the crime of manslaughter was not punishable by death. He then launched his main attack
on Nickerson's several examinations before various officials, treating them as confessions,
in which the favorable as well as the unfavorable must be admitted, and attacking
their admissibility generally. Next he proceeded to set out authorities, familiar
to him both from Corbet and Sewall v. Hancock,No. 46, requiring that proof be certain and consistent in criminal cases. He closed with
observations upon Fitch's treatment of the evidence (Documents I, III).

On Thursday afternoon, 5 August, Fitch “closed the cause,” and the Court, after telling
the prisoner that if he had more to say in his defense he could say it the next day,
adjourned until the morning of the 6th. When the Court reconvened, Nickerson “express'd
his Wishes that certain Witnesses (who he apprehended would testify in his Favor)
had been present; and concluded with saying that, 'if I lose my Life, I am innocent
of the Crime laid to my Charge.'” The court room was then cleared, and the Court undertook
to consider the evidence. After two and a half hours the prisoner was called in, and
“the President [Hutchinson], after a solemn Pause, told the Prisoner, 'The Court have considered of your Offence, and they do not think that the Evidence
offered to them is sufficient to support the Charge alledged against you in the Information—and
therefore adjudge younot guilty.'” On motion by Nickerson's counsel, the Advocate General not objecting, he was discharged.
“The Prisoner being informed of it, respectfully bowed to the Court, and said, 'I
thank the honorable Court —and GOD—for my deliverance!'” As a contemporary newspaper
put it, “Thus ended a Trial, for the most surprizing Event, which has happened in
this, and perhaps any other Age of the World.”19

Later accounts by Hutchinson and Adams differ as to the reasons for the acquittal.
The newspapers had reported that, the court being divided four and four on the question,
“An Acquittal of the Prisoner followed of Course.”20 Hutchinson, who made no bones about his certainty that Nick• { 340 } erson was guilty, confirmed the report of the court's division, but said that the
crucial issue was a procedural one. The statute, 11 & 12 Will. 3, c. 7 (1700), under
which the court was constituted, gave jurisdiction in piracies and other “felonies,”
excluding murder, according to the opinion of the Crown law officers in England. The
information charged Nickerson with piracy only, but alleged the murder to support
it. Four of the Court held that to convict of piracy would be to convict of murder,
and thus to exceed their jurisdiction.21 Adams' notes show that Fitch argued this point (Document II), and suggest that Adams briefly replied (Document III). Adams did not, however, in his subsequent recollections see this as the critical
question. He admitted that he did not know the basis of the acquittal, but guessed
that the court was moved by lack of direct evidence, and consequent doubt of Nickerson's
guilt, a doubt which he shared himself.22 Either version of the acquittal is supported by the language of the court's decision.

Nickerson himself, who, according to Adams, thereafter “lived many years, and behaved
well,”23 did not seem to be overly grateful to his counsel. His comments before and after
his discharge at the trial, already quoted, suggest a certain lack of appreciation
for their efforts, and a tendency to credit his release to other agencies. Adams later
reported that “He had nothing to give me, but his promissory Note, for a very moderate
Fee. But I have heard nothing from him, nor received any Thing for his note, which
has been lost with many other Notes and Accounts to a large Amount, in the distraction
of the times and my Absence from my Business.”24 This note, dated 30 July 1773, for £6 13s. 4d. has been found, too late to enforce
payment, and still remains, unreceipted, in the files of the Adams Papers.25

2. Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3. See also, Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3; 3 Hutchinson, Massachusetts Bay, ed. Mayo, 300. The latter adds the details, presumably from Hutchinson's personal knowledge
of the case, that the Nickerson schooner was first boarded “by a large boat, rowed
with twelve oars, which came from an armed schooner lying to at a distance.” Doane
also figures in Doane v. Gage, No. 43, and appears briefly in the epic of the Lusanna, No. 58. Fitch's account of the evidence (Doc. II) suggests that Nickerson testified that his purpose in going on the voyage was “to
get his Cloaths.”

3. That is, the taffrail, the upper part of a ship's stern, sometimes a railing there.
The spelling in the text is a corruption of the 18th-century usage, “tafferel” which
is derived from the Dutch taferell, a panel. OED. JA, in a later account, referred to this as “some thing, the technical term for which,
in naval architecture, I have forgotten.” JA to David Sewall, 29 Jan. 1811, 9 JA, Works 627, 628.

4. Hutchinson described this as “the money which the crew had received at Boston, for
the earnings of their vessel the year preceding,” assigning robbery as the motive.
3 Hutchinson, Massachusetts Bay, ed. Mayo, 301–302. According to one contemporary account, the vessel was returning home after
discharging its catch from a fishing voyage at Boston. Massachusetts Spy, 19 Nov. 1772, p. 3, col. 3. Compare JA's comment that “A sum of money of no great amount had been shipped on board by one
of the other men, which was not found.” JA to David Sewall, note 3 above.

10. In the Boston Evening-Post, 23 Nov. 1772, p. 2, col. 3, the Lively was reported as having returned “yesterday.” Rowe, Letters and Diary 236, reports her return “from a Cruize into Nantasket Roads,” with “No further account
of any Pirate,” on 28 November. The discrepancy may be accounted for by the possibility
that the vessel made more than one “Cruize.”

12. Boston Evening-Post, 21 Dec. 1772, p. 2, col. 3. According to Rowe, the court at this session consisted
of “The Governour, Lieut Govr, The Secretary of the Province, The Admirall The Judge
of Admiralty, Mr. Fisher the Collector of Salem, Mr. Waldo, The Collector of Falmouth
Casco Bay.” Rowe, Letters and Diary 237. Hutchinson's version is that “the counsel for the prisoner moving for further
time, and urging that intelligence might probably be obtained of a pirate schooner
having been in the bay, and it appearing that a large armed schooner sailed from Boston,
bound to the coast of Guinea, at the same time with the fishing vessel, the court
thought proper to adjourn the trial for six months.” 3 Hutchinson, Massachusetts Bay, ed. Mayo, 301.

16. JA to David Sewall, 29 Jan. 1811, 9 JA, Works 627, 628; compare 3 JA, Diary and Autobiography297: “He requested my Assistance and it was given.” The note which Nickerson gave Adams
for his fees was dated 30 July 1773. See text at note 25 below.